Trouble for the Dennis Canon?

From The Anglican Curmudgeon via Transfigurations:

Tuesday, December 9, 2008

The Diocese of Central New York has brought an action against the Church of the Good Shepherd in Binghamton, New York, the church where the Rev. Matt Kennedy of the Stand Firm in Faith blog is rector, and his wife, the Rev. Anne Kennedy (who has her blog as well) assists him. The Church voted to leave the Episcopal Church (USA) in November 2007, and the Diocese is seeking a court order declaring (as per the Dennis Canon) that it now owns the Church buildings and assets.

The Diocese has brought a massive motion for summary judgment which will be heard by the court this Friday, December 12. The Church of the Good Shepherd will be defended by my friend and colleague, Raymond Dague. (Thus you know my bias in this matter. And in the interest of full disclosure, you should know that I link in my sidebar to the blog Transfigurations maintained by Raymond's wife Pat, who does a Herculean job of posting all the latest news of interest in the Anglican community---and on other topics as well.)

Raymond recently filed his opposition to the motion, along with cross-motions for summary judgment and to dismiss the Diocese's action, both as to all claims, as well as specifically with respect to its claim to a specific bequest left to the Church. The former motions are based on the assertion that ECUSA never properly adopted the Dennis Canon in 1979. Consequently, if the Dennis Canon was never enacted, ECUSA and the Diocese cannot rely upon it as a basis for asserting that they own the assets of the Church of the Good Shepherd.

Supporting the Church's motions are affidavits of the Rev. Matt Kennedy and of the Rev. George Conger, who blogs on Anglican matters, as well as writes for the Church of England Newspaper and Religious Intelligence in England, and for The Living Church in this country. Father Conger has conducted extensive personal research on the consideration given to the Dennis Canon at General Convention 1979 in Denver, Colorado. In August 2007 he viewed the original records of that Convention which are maintained at the Episcopal Archives, housed in the library of the Episcopal Theological Seminary of the Southwest in Austin, Texas. In his affidavit, he traces the paper trail of the Resolution which embodied the two sections of the Dennis Canon (published as sections 4 and 5 of Canon I.7).

The Resolution, number D-24, originated in the House of Deputies. When it reached the House of Bishops it was adopted by that body on September 13, 1979 after it had made some amendments. Fr. Conger found in the Archives the original typewritten version of the Resolution as so adopted by the House of Bishops.

Having passed the House of Bishops in a form different from that in which it originally passed the House of Deputies, Resolution D-24 was then returned to the House of Deputies for its concurrence in the amended version, in a communication entitled "Message No. 76". Under the provisions of ECUSA's Constitution, the Resolution would become part of its Canons only when both Houses had enacted identical versions. In the House of Deputies, Resolution D-24 was referred to the Committee on Canons, and was reported favorably by that Committee on September 17, 1979, in Report No. 32.

Now the paper trail gets murky. Here is how Father Conger describes what he found in the box of original materials in the Archives:

14) I reviewed the Handbook of the Secretary of the House of Deputies. This book contained all of the legislative actions and committee reports, and was where the reports on legislation from the 10th day of Convention should have been located, but they were not there. Days 1 through 9 inclusive were present, as was day 11, but all there was from the 10th day was the consent calendar. All that had survived in the documentary record was the 10th day’s agenda with handwritten pen annotations made . . . by the Secretary of the House on the typed calendar of the actions to be addressed that day. A copy of the September 19, 1979 Calendar with the handwritten marks is annexed hereto as Exhibit “D”.

15) While other agenda items were checked or marked by pen on the typed calendar, the Dennis Canon was not marked off in any manner whatsoever. The reference to the Dennis Canon is listed as Item #14 as “Report of Committee #5 on Canons H/B 75 and H/B 76 (D-24) (See Committee Report) Amend Canon I-[6] and Canon II-7" on the bottom of the first page of that September 19, 1979 Calendar of the House of Deputies. Most all of the other calendar items were checked or marked, but not the Dennis Canon.

16) Further documentary evidence of the Dennis Canon, Resolution D-24 as contained in Message No. 76 and Committee Report 13 as contained in Message No. 75 was not in the records which I examined.

Since he could find no indication in the official records of the House of Deputies that it had adopted the Resolution as passed by the House of Bishops, Father Conger looked for any indication that the records for the 10th day had been misfiled. He went through all of the files for the 1979 Convention, but could not find them. Instead, all he found was this:

17) I did a complete search of the all of the records held by the Archive for the 1979 General Convention to see if these missing records might be out of order and misfiled, but did not find them. In that search I examined the “print shop” binder—a record of all items sent for duplication, and there I found only the 10th day summary. On page 9, the summary reports resolution D-24 as amended was adopted by the Deputies, and message 204 memorializing this action was sent to the House of Bishops—-however no copy of this message has survived either, and is known only by that reference.

The exhibits to Father Conger's affidavit may be viewed here. These sketchy records raise more questions than they answer. What can the absence of a check mark next to the agenda item for Report No. 32 on Resolution D-24 mean---that the item was never taken up or concluded, or that the Secretary simply forgot to check it off with all the other items that were checked off that day?

Additionally, in the print shop summary found by Father Conger, it says (according to his affidavit; the summary itself has not been published as an exhibit) "Resolution D-24 as amended was adopted by the Deputies" (emphasis added). The phrase "as amended" is ambiguous.

As noted earlier, Resolution D-24 was amended in the House of Bishops before it passed. Does the phrase thus refer to that fact, or to the fact that the Resolution was amended again by the House of Deputies? If the latter, then the version passed by the Deputies would not have agreed with the version passed by the Bishops, and since there was no further action by the House of Bishops, the measure could not lawfully have become part of the Canons. Since the original message (no. 204) from the House of Deputies to the House of Bishops reporting the passage of Resolution D-24 "as amended" has also been lost, there is simply no way of telling in what version the Resolution passed the House of Deputies.

As the affidavit of Father Kennedy attests, Messrs. White & Dyckman report, at p. 296 of Vol. I of their authoritative treatise on the history of ECUSA's Constitution and Canons published in 1981, that:

Sections 4 and 5 were added by this Convention. (Journal, pp. B-60, D-154. The account of this legislation does not appear under "Concurrent Actions." The reference in the index is to a related action.)

(Emphasis added. For an explanation of the mistaken reference in the index, see the detailed argument in paragraphs 26-47 of Raymond Dague's brief.) It is highly unusual, to say the least, for White & Dyckman to include such an observation. Its importance stems from the fact that their treatise was published, as noted, just two years after General Convention 1979. This would indicate that the records were just as sketchy then as they were when the Rev. Conger examined them last year.

In his affidavit, Father Conger is careful not to tread upon the responsibility of the Court to decide issues of law:

18) In closing, I hereby express no opinion as to the legal significance of my findings that much of the documentation relating the Dennis Canon of the 1979 General Convention is missing from the archives and cannot be verified. I do affirm that the facts laid out by me in the above statement are a correct account of what I found in my researches in the archives of the Episcopal Church. I have given this affidavit at the request of Raymond Dague, attorney for the Church of the Good Shepherd in Binghamton, New York, and I understand that it will be used in litigation, and I so consent to its use.

It is well that he did this, because in the past he did allow himself to express an opinion, on his blog:

Claims the Dennis Canon failed to pass both Houses of the 1979 General Convention are unfounded.

While the minutes of the House of Deputies and other important papers from the 1979 General Convention have not survived, sufficient documentary evidence exists in the Archives of the Episcopal Church to cast doubt on published claims that the Dennis Canon was overlooked and not brought to a vote in the final hours of the 1979 General Convention.

At the time he wrote this, Father Conger had just returned from viewing the originals in Austin. He appears to have been concerned at the time (and perhaps this was the motive for his trip to Austin) to counter other published reports which, following White & Dyckman, claimed that the Dennis Canon had not properly passed both Houses at General Convention. He wrote:

Assertions and opinions about the legal sufficiency of Title I.7.4 (as the Dennis Canon is presently numbered) have circulated within traditionalist circles for three decades. The issue has taken on a heightened importance this past year with the blizzard of diocese/parish litigation, and threatened lawsuits by the national church offices against dioceses and bishops for “breach of fiduciary” duties in connection with the property canon.

The possibility that the canonical basis for the national church’s legal offensive was flawed has stirred conservative imaginations, and has been discussed unofficially in a number of gatherings, including last month’s Anglican Communion Network meeting in Fort Worth.

He also noted that personal recollections of what happened at General Convention 1979 differed sharply:

. . . the Rev. Lawrence W. Thompson, vicar of St. Matthias Anglican Church in Dothan, Ala., . . . claimed that a “priest (later a bishop) who was physically present at the general convention and who closely watched to see whether or not this specific canonical change passed told me that it did not pass.”. . .

. . .

Deputies to the 1979 Convention offered mixed responses. One stated he recalled quite clearly the vote, another was equally adamant the vote did not take place, while the majority stated they could not remember.

“It was almost thirty years ago,” Mr. A. Hugo Blankingship, Jr., a deputy from Virginia said. “I just don’t recall.”

Fortunately for current purposes, Father Conger qualified the opinion he expressed in the first two paragraphs of his article (quoted above) with this third paragraph:

However, the paper trail that would support a conclusive determination that the Dennis Canon did pass the House of Deputies on the 10th legislative day is incomplete, keeping open the door for further litigation.

Also fortunate is that the motions to be heard on December 12 in New York will be decided by affidavits, and so Father Conger will not be required to take the stand. Otherwise, one can easily imagine the kind of cross-examination to which the Diocese's attorneys would have liked to subject him. (Even so, they might not have been allowed to do so. As I mentioned, only the judge decides issues of law, and so because the court would not have allowed Father Conger to testify on a point of law, it would not have allowed him to be cross-examined on one, either.)

I, too, must admit that I was influenced by Father Conger's earlier article, and tended to side with his expressed view that while the record was incomplete, it could support a conclusion that the Canon had passed both Houses. (I have cited that article on this blog three times in connection with my earlier discussions of the Dennis Canon.) I am therefore glad that my colleague Raymond Dague did not allow himself to be so readily persuaded. And I salute Father Conger for having the courage now to put his opinions aside, and to let the facts speak for themselves.

For facts, as founding father John Adams noted in the Boston Massacre trial, "are stubborn things." And where motions for summary judgment are concerned, facts are crucial. A motion for summary judgment can be granted only if the facts are not in dispute, and if the moving party is entitled to judgment "as a matter of law." If there are key facts which are in dispute, the case must go to trial, and the trier of fact (the jury, if one is empaneled, or if not, the judge sitting alone) has to resolve the disputes after listening to all the testimony on both sides.

The Diocese of Central New York (and ECUSA) need the Dennis Canon to establish their case that a trust in their favor was imposed on the property of the Church of the Good Shepherd. (As Father Kennedy's declaration states, the Church preceded the creation of the Diocese by more than fifty years [para. 9], and the deed to the property is solely in its name [para. 19].) If the Dennis Canon was not properly enacted, then their case would fail.

The facts presented in the Conger affidavit, based upon a personal examination of the original records, are sufficient to raise a classic issue of disputed fact as to whether or not the Canon properly passed both Houses at General Convention 1979.

Therefore, even with my pre-announced bias, I have no difficulty in opining that the motion brought by the plaintiff Diocese should be denied on that basis. The plaintiff should be required to present its evidence of passage at a trial, and let the trier of fact decide whether it is good enough in light of all the evidence. [See the UPDATE 12/10/2008 below.]

But what about the motion to dismiss, and the cross-motion for summary judgment on all claims brought by the defendant parish? Here I am afraid I must be consistent, and say that what is sauce for the goose is sauce for the gander. If there is a disputed issue of fact sufficient to defeat the motion of the Diocese, then there is a disputed issue of fact preventing resolution as a matter of law of the cross-motions as well. (However, the separate cross-motion as to the specific bequest might well be decided as a matter of law, since the only dispute there is over the interpretation of the language of the bequest. Such interpretation presents just a question of law for the court.)

If the judge believes that the disputed issues are plain enough, he could rule from the bench on Friday, and deny all motions addressed to the case as a whole. Or he could take the matter under submission, if he has not had time to read all the voluminous papers, and issue a ruling sometime in the next 90 days. (And he probably will do so in any event on the motion concerning the specific bequest, since he will want to issue a written ruling giving his reasons for the interpretation which he decides to give to its language.)

Either way, however, the case will most likely not be over on Friday, or any time soon thereafter. The case seems headed for a full trial on the facts.

[UPDATE 12/10/2008: The Diocese is also basing its motion for summary judgment on its own Canon XXIII, which reads in its entirety (see p. 154):

In conformity and consistent with the provisions of Title I, Canon 7.4 and .5 of the Canons of the General Convention*, it is hereby explicitly reaffirmed that all real and personal property held by or for the benefit of any parish, mission, chapel, or congregation located in the Diocese of Central New York is held in trust for the Episcopal Church and The Diocese of Central New York. The existence of this trust, however, shall in no way limit the power and authority of the parish, mission, chapel, or congregation, or the power and authority of the Trustees of the Diocese holding title thereto, otherwise existing over such property so long as the particular parish, mission, chapel, or congregation remains a part of, and subject to, The Episcopal Church and the Diocese of Central New York and the Constitution and Canons of each of them.

* Title I, Canon 7.4 & 7.5 of Business Methods in Church Affairs

The parish's argument is that this Canon stands or falls on the proper enactment of the Dennis Canon, since it assumes the latter's existence as a basis for its enactment:

5. Canon XXIII of the Canons of the Diocese of Central New York is, by its own words, “in conformity and consistent with” the Dennis Canon. If there is no Dennis Canon, there is nothing for the local diocesan canon to track, and it too lacks validity.

The same would appear to be true of the statute which "enacts" the Dennis Canon in New York, Religious Corporations section 42-A:

§ 42-a. Additional powers of the corporate trustees and vestry.

Notwithstanding and in addition to the provisions of section five of this chapter, and subject always to the trust in which all real and personal property is held for the Protestant Episcopal Church and the Diocese thereof in which the parish, mission or congregation is located, the vestry or trustees of any incorporated Protestant Episcopal parish or church, the trustees of every incorporated governing body of the Protestant Episcopal Church and each diocese are authorized to administer the temporalities and property, real and personal, belonging to the corporation, for the support and maintenance of the corporation and, provided it is in accordance with the discipline, rules and usages of the Protestant Episcopal Church and with the provisions of law relating thereto, for the support and maintenance of other religious, charitable, benevolent or educational objects whether or not conducted by the corporation or in connection with it or with the Protestant Episcopal Church.

The phrase "the trust in which all real and personal property is held for the Protestant Episcopal Church and the Diocese thereof in which the parish, mission or congregation is located" does not enact such a trust, but assumes there is such a trust already in existence. Thus if the Dennis Canon was not validly enacted, the New York statute will not, in and of itself, save it.

Whether the same is true of the Diocesan canon will depend on how the Court views the evidence creating an issue of fact about the enactment of the Dennis Canon. For if the passage of Canon XXIII (which is not itself in dispute) assumed the prior validity of the Dennis Canon, then it would appear that there is an issue of fact about the applicability of Canon XXIII as well to the case. In other words, a trier of fact would have to decide whether the Diocese intended Canon XXIII to apply even in the event that the Dennis Canon was, for whatever reason, invalid. If the court finds that such a question is raised by the evidence, it will not be able to grant the Diocese's motion on the strength of its own Canon alone.]